The Massachusetts Supreme Judicial Court’s recent rebuke to supporters of a graduated income tax amendment showed how progressives failed to understand the checks and balances of the state’s constitution —conceived admirably by John Adams and amended narrowly and —perhaps ironically —by turn-of-the-20th-century Progressives.
The ruling was a stinging defeat for Raise Up Massachusetts, the union-backed coalition that spearheaded the petition drive, and state Attorney General Maura Healey, who certified the petition last year. Healey, and others, made clear that, even in defeat, they intend to pursue higher taxes.
Both the Attorney General and her allies expected the court to overlook the niceties of constitutional law in favor of vague sentiments such as fixing potholes and reducing income inequality.
That impulse proved to be the undoing of the amendment, long in the making and equally long in raising expectations for spending sprees.
The Fair Share amendment intended to levy a 4-percentage-point income tax surcharge on individuals earning more than one million dollars. It purported to earmark the revenue for education and infrastructure, subject to appropriation. The term “subject to appropriation” apparently was inserted to attempt to to avoid a specific prohibition of Article 48 of the Massachusetts Constitution, which provides in part that: “No measure that relates to …. or that makes a specific appropriation of money from the treasury of the commonwealth, shall be proposed by an initiative petition…” The petition’s language also served as a wink and nod to the state legislature, respecting their supreme role in tax and budget matters.
In 2016 and 2017, the legislature obliged the wishes of Raise Up Massachusetts, approving (while meeting as a constitutional convention) the measure, which was required before it could go on a general election ballot.
The proposal, which ostensibly had public support according to several polls, was headed to the November 2018 ballot. But business groups asked the Supreme Judicial Court to intervene. In a 5-2 decision, the high court ruled that the petition, by introducing three distinct elements in one package, was written in such a way as to confuse voters in violation of said Article 48. Voters, the court said, deserved clarity, not a jumble of assorted objectives. It sided with the key arguments made by the business community: that the allure of two un-related matters wrapped up in a wish violated the state’s constitution and ample legal precedents.
“We conclude that the initiative petition should not have been certified by the Attorney General as ‘in proper form for submission to the people,’ because, contrary to the certification, the petition does not contain only subjects which are related or which are mutually dependent,” wrote Justice Frank Gaziano for the majority.
Raise Up Massachusetts was tripped up by its own ambitions. The belief that the Supreme Judicial Court would affirm the Attorney General’s decision was seized upon by the opposition, who dangled the relatedness clause in front of the high court. That strategy —rather than focusing on who gets to appropriate tax revenues —proved to be crushing. In the end, the court majority was not moved by a “conceptual or abstract bond” between education and transportation. Doing so would have placed “voters in the untenable position of either supporting or rejecting two important, but diverse spending priorities, accompanied, in either case, by a major change in tax policy,” Gaziano wrote. Each item — the tax, the education spending, the transportation spending – could have been voted on independently.
Article 48 —the stubborn fact at issue in 2018 —was a Progressive invention born of the initiative and referendum push that led Massachusetts voters to approve the amendment in November 1918. As the court ruled the referendum movement embodied compromises to safeguard against excesses of both direct and representative democracy. For example, the article expressly left the direct financing of public goods – appropriations — to the legislature. It also protected individual liberties, religious minorities, and judicial independence. These and other matters were off-limits. (The book to read is David D. Schmidt’s Citizen Lawmakers: The Ballot Initiative Revolution; Schmidt called the Massachusetts initiative-and-referendum process the most “cumbersome and complicated.”)
The sentiments that “taxes do not matter” and that behavioral responses to higher taxes are inertly negligible remain mainstream progressivist thinking in Massachusetts. The holy grail of those that hold this view is the adoption of progressive taxation, no matter the poor track record at the ballot box.
Since the tax limitation movement solidified in 1978, progressives have sought work-arounds to erase one of the state’s remaining tax policy advantages, its single-rate flat tax. That advantage is part of the reason why Massachusetts thrives competitively, despite other drawbacks such as housing and energy costs.
Blessed with strength in numbers, progressives believe that wall of tax resistance will eventually be breached. Opposition to taxes in Massachusetts once enjoyed broad-based support, but the foot soldiers who introduced Proposition 2 ½ are unfunded and outnumbered compared to the power of public sector unions. The business community that opposed the Fair Share amendment in court this time may not be so fortunate in the future in the courts or on Beacon Hill. Moreover, the state’s top businesses, dominated by the health care and biotechnology sectors, may be more inclined to support progressive business leaders. One of the groups filing an amicus brief in favor of the petition was the Alliance for Business Leadership, whose aims are not far from those of organized labor.
Combining the disparate “needs” of its constituents, the progressive movement excels at logrolling, which aggregates all the wishes of its constituents from teachers to trench diggers with the hope that voters will go along. That may have worked in lobbying the legislature; it does not work in the arena of initiative-and-referendum.
The failed Raise Up Massachusetts effort was the product of a vain attempt to “sweeten the pot” by including popular spending on education and roads. Thus, the supporters were done in by their marketing pitch, which trumped sound legal thinking.
For despite its failure in 1994, drafters of the graduated income tax back then were smart enough to clear any constitutional anxieties before they were trounced by the voters. They were also blinded to the failure of the Common Core education ballot question from a few years ago that suffered the same relatedness problem. Had they learned anything? In 2018, greed got ahold of the progressives by aligning their selfish interests behind the cloak of popular spending.
Such conceits are never fatal for the phalanx of Massachusetts progressives in a one-party state. Temporary disappointment is giving way to a makeover, this time from allies in the legislature who will come up with their own constitutional change for 2022 (after a four-year respite required by law). State Senator Jason Lewis (D-Winchester) expects to introduce a legislative version of the Fair Share amendment that will be free of the kind of constraints cited by the Supreme Judicial Court last month.
For progressives, the state constitution has stood in their way for too long. The Millionaires Tax legal defeat last week was just a bump in the road.
Frank Conte is the Editor and Publisher of EastBoston.com. He formerly served as the Director of Communications for the Beacon Hill Institute.
Massachusetts Supreme Judicial Court (Courtesy — Wikipedia) 
